Allowed

Annie Mary Nirmala Balsalam v. v. Daniel

Kerala HC9 Feb 2018OP(C)/288/2018

Case brief

AI extract

What is this about?

High Court of Kerala under Article 227 set aside a non-speaking order of the trial court which allowed re-opening of evidence without recording reasons. The trial court was directed to pass fresh speaking orders after hearing both sides.

What did the court decide?

Impugned order allowing re-opening of evidence set aside; matter restored to trial court to pass a speaking order after hearing.

Annie Mary Nirmala Balsalam Vs v. Daniel — Civil Procedure and Limitation | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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FRIDAY, THE 9TH DAY OF FEBRUARY 2018 / 20TH MAGHA, 1939

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OP(C).No. 288 of 2018 --------------------I.A NO.1635/2017 IN OS 290/1999 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM -----------

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PETITIONER(S)/RESPONDENTS 1 & 2

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1 ANNIE MARIE NIRMALA BALSALAM, AGED 75 YEARS, W/O. LATE SIKHAMANI BALSALAM, RESIDING AT MULAVANAVILAKATHU, BERTHWILL BUNGALOW, KUNNUKUZHY, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. 2 VASANTHAN SIKHAMANI BALSALAM, AGED 62 YEARS, S/O. LATE SIKHAMANI BALSALAM, RESIDING AT MULAVANAVILAKATHU, BERTHWILL BUNGALOW, KUNNUKUZHY, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN

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RESPONDENT(S)/1 TO 5/PETITIONERS & RESPONDENTS 3 & 4:

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1. V. DANIEL, AGED ABOUT 50 YEARS, FATHER'S NAME KNOT KNOWN, T.C. 2/752, "RANI BHAVAN", CHALAKKUZHI ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. 2. K.J. THANKACHAN, AGED ABOUT 45 YEARS, FATHER'S NAME KNOT KNOWN, T.C. 2/752 (3), "MERCY BHAVAN", CHALAKKUZHI ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. 3. P. RAMACHANDRAN NAIR, AGED ABOUT 55 YEARS, FATHER'S NAME KNOT KNOWN, T.C. 2/750, "THIRUVONAM", CHALAKKUZHI ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. 4. THOMAS VARGHESE, AGED ABOUT 50 YEARS, FATHER'S NAME KNOT KNOWN, T.C. 2/750, "THAMARA BHAGOM", CHALAKKUZHI ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. 5. K.V. ANNAMMA, AGED ABOUT 50 YEARS, W/O DANIEL, T.C. 2/752, CHALAKKUZHI ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011.

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OP(C).No. 288 of 2018 (O)

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6. DR. MANOHARAN SIKHAMANI BALSALAM, AGED 48 YEARS, S/O. LATE SIKHAMANI BALSALAM, RESIDING AT MULAVANAVILAKATHU, BERTHWILL BUNGALOW, KUNNUKUZHY, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011.

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7. SANTHOSH SIKHAMANI BALSALAM, AGED 48 YEARS, S/O. LATE SIKHAMANI BALSALAM, RESIDING AT MULAVANAVILAKATHU, BERTHWILL BUNGALOW, KUNNUKUZHY, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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OP(C).No. 288 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE ORDER DATED 17.01.2018 IN I.A NO. 1635/2017 IN O.S 290/1999 OF THE SUB COURT, THIRUVANANTHAPURAM.

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RESPONDENTS EXHIBITS: NIL ---------------------

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/TRUE COPY/ K.V. P.S.TO JUDGE

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ALEXANDER THOMAS, J.

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O.P.(C) No.288 of 2018

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----------------------------------------Dated this the 9^th day of February, 2018

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JUDGMENT

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The prayers in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India are as follows :

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“Call for the records leading to Exhibit-P1 order and set aside the same.”

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Heard Sri.N.Subramaniam, learned counsel appearing for the petitioners. In compliance with this Court’s order dated 1.2.2018, the petitioners have served notice on the respondents through the respective Advocates appearing for them before the court below concerned, but there is no appearance for that party.

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The order impugned in this O.P.(C) is the one at Exhibit-P1 whereby the application filed by respondents 1 to 5 herein/defendants 2 to 6 in the O.S., to re-open evidence has been allowed after the closure of the evidence. It is pointed out that during trial earlier, the plaintiffs had tendered oral evidence and had marked Exhibits-A1 to A6 documents and that the defendants had marked Exhibit-B1 document, but did not tender any oral evidence. It is also pointed out that after the remand, the plaintiffs did not adduce any further oral or documentary evidence and the defendants also submitted that they did not have any

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O.P.(C) No.288/18

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further oral or documentary evidence. Therefore, the evidence was closed and the suit was posted for hearing. The defendants had produced a survey plan which had been made available earlier and they sought for re-opening the evidence by filing I.A.No.1635 of 2017, it is averred. The plaintiffs had filed detailed objections to I.A.No.1635 of 2017. That the said objection have been overruled and the plea in the said I.A. has been allowed as per the impugned Exhibit-P1 order. Exhibit-P1 order reads as follows :

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“In the interest of justice and for avoiding multiplicity of proceedings, the petition is allowed and evidence is re-opened.”

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Without getting into the merits of the controversy, it can be seen that the impugned order at Exhibit-1 is a non-speaking order. It does not disclose any application of mind or consideration by the trial court and it does not give any reason for arriving at the conclusions stated therein. On that reason alone, the impugned order is liable to be set aside and accordingly, the impugned Exhibit-P1 order will stand set aside. Correspondingly, it is ordered that I.A.No.1635 of 2017 (on which Exhibit-P1 order was rendered) will stand restored to the trial court concerned. The court below, after hearing both sides, will pass fresh orders thereon, without much delay, preferably within a period of two weeks from the date of production of a certified copy of this judgment. The trial court will advert to and consider the rival contentions in that regard and then render a speaking order, giving the reasons in support

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O.P.(C) No.288/18

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of the conclusions that may be arrived at by that court. The petitioner will produce a certified copy of this judgment before the court below concerned for necessary information.

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With these observations and directions, the Original Petition (Civil)

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will stand finally disposed of.

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ALEXANDER THOMAS JUDGE

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O.P.(C) No.288/18

ALEXANDER THOMAS, J.

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---------------------------------------O.P.(C) No.288 of 2018

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----------------------------------------Dated this the 1^st day of February, 2018

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O R D E R

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Issue notice before admission which shall be served by the petitioners on Sri.V.S.Bhasurendran Nair, Advocate, Thiruvananthapuram, who appeared for respondents 1 to 5 herein in Exhibit-P1 proceedings as well as on the Advocate who appears for R6 and R7 before the court below. The petitioners will produce the copy of I.A.No.1635 of 2017 on which Exhibit-P1 order has been passed as well as the objections filed by the petitioners along with an affidavit. A photocopy of this order should also be served by the petitioners on the abovesaid Advocates appearing for the respondents before the court below.

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Further proceedings in the O.S. will stand deferred by ten days. List on 9.2.2018.

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ALEXANDER THOMAS JUDGE

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Annie Mary Nirmala Balsalam v. v. Daniel

Case brief

What is this about?

What did the court decide?

Annie Mary Nirmala Balsalam v. v. Daniel

Case brief

What is this about?

What did the court decide?

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